The appeal to the House of Lords in the "Bournewood Case" was held on 25 June 1998. The Court of Appeal had previously made a decision which meant that patients who lacked capacity to consent to admission, but who did not show any objection, could not be admitted and effectively detained unless "sectioned" under the Mental Health Act. In other words, hospital admission was seen by the Court of Appeal as something which a person has to have the mental capacity to choose in an informed and knowing way. They cannot be held in hospital unless they "opt-in" (or unless compulsorily detained under the Act - where the law is opting-in for them).
Previously - before the Court of Appeal decision - it had been assumed that people who lacked that capacity - for example people with dementia or severe learning disabilities - could be deemed to be content with their admission provided they did not show signs of wanting to leave or to "opt-out". If they were not actively opting-out then it was OK for them to be kept in hospital and treated, and formal detention under a section of the Mental Health Act was not needed.
The Law Lords looked at two main questions - (i) was the person involved (known as "L") actually detained, and (ii) if he was detained, was that detention lawful. They disagreed with the Court of Appeal and overturned their decision. Therefore the previous position described above has been restored.
Five Law Lords heard the appeal and they did not entirely agree about whether or not L was actually detained. The majority took the view that the important question was whether or not he was falsely imprisoned, and for that to occur there must be an actual, not just potential, restraint on his liberty. Bournewood NHS Trust argued that the patient was, in principle free to leave hospital, even though it was clear that had he tried to do so steps would have been taken to prevent him and detention under the Mental Health Act would have been considered and probably used. But he did not try to leave, so no actual restraint on his liberty took place. Two of the five Law Lords pointed out that in any sensible understanding of the word he was detained - one said that the suggestion he was free to go was "a fairy tale".
However, all the Law Lords agreed that what had taken place was justified by the common law principle of "necessity", with the hospital staff acting in the best interests of someone who would have experienced significant suffering had they not done so. They were also aware that if they agreed with the Court of Appeal's approach, then many more people, who were not actively objecting to being in hospital but who could not give proper informed consent, would have to be detained under the Act. This would cause them and their relatives a great deal of upset, and create vast additional work for all professionals involved. The Law Lords went right back to a Royal Commission Report published in 1957 which preceded the drafting of the Mental Health Act 1959. The clear intention expressed by the Commission and enshrined in the 1959 Act was that formal compulsory admission should only be used where absolutely necessary. The 1957 Commission said:
"We recommend that the law and its administration should be altered, in relation to all forms of mental disorder, by abandoning the assumption that compulsory powers must be used unless the patient can express a positive desire for treatment, and replacing this by the offer of care, without deprivation of liberty, to all who need it and are not unwilling to receive it. All hospitals providing psychiatric treatment should be free to admit patients for any length of time without any legal formality and without power to detain...."
This principle had been included in the 1983 Act using exactly the same wording as was used in the 1959 Act. Although the lawyers working for L argued that the interpretation of the wording should be different in the 1983 Act, this was not accepted. The Law Lords were certain that it was not Parliament's intention that all patients without the capacity to consent to admission or treatment should be formally detained under the Act, and if they went along with the Court of Appeal's view then the result would be the opposite of what was intended by Parliament.
In many ways this judgement is a great relief to those involved in the psychiatric services, but there is one important area of concern in relation to civil liberties. The Mental Health Act exists to regulate strictly various matters relating to people detained under the Act.
There may be very little difference clinically between:
However, the first of these groups has considerable protection, for example, in relation to medical treatment, as set out in Section 58. An instance of this is that if 3 months have passed since medication was first given in the period of detention, and the person cannot consent to treatment, then a second opinion form an independent doctor is required before that medication can continue to be administered. For someone not detained under the Act, who does not have the capacity to consent to the medication, it is possible that medication could be given for much longer periods. This could be legally justified by the common law principle of necessity, but would be without any need for a second opinion, since Section 58 only applies to people who are detained under the Mental Health Act.
The Government has said that it will take these issues into account in its forthcoming review of mental health law.